Lin v. United States Department of Justice , 153 F. App'x 65 ( 2005 )


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  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    10-17-2005
    Lin v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 04-2041
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2005/404
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 04-2041
    ____________
    KAI LIN,
    Petitioner
    v.
    UNITED STATES DEPARTMENT OF JUSTICE,
    ALBERTO R. GONZALES,*
    Attorney General of the United States
    ____________
    On Petition for Review from an
    Order of the Board of Immigration Appeals
    (Board No. A77-341-294)
    ____________
    Submitted Under Third Circuit LAR 34.1(a)
    September 22, 2005
    Before: ROTH, McKEE and FISHER, Circuit Judges.
    (Filed: October 17, 2005)
    ____________
    OPINION OF THE COURT
    ____________
    *
    Attorney General Alberto R. Gonzales has been substituted for former Attorney
    General John Ashcroft, the original respondent in this case, pursuant to Fed. R. App.
    P. 43(c).
    FISHER, Circuit Judge.
    Petitioner Kai Lin, a citizen of China, petitions for review of a decision of the
    Board of Immigration Appeals (“Board”) entered March 31, 2004, affirming denial of his
    applications for asylum, withholding of removal, and protection under the United Nations
    Convention Against Torture (“CAT”). We will deny the petition.
    I.
    Petitioner arrived in the United States on November 12, 2000, without valid
    immigration documents and was immediately deemed subject to removal. The
    Immigration and Naturalization Service 1 subsequently instituted removal proceedings
    against him under 
    8 U.S.C. §§ 1182
    (a)(6)(C)(i) (alien seeks to procure entry by fraud or
    wilful misrepresentation of material fact) and 1182 (a)(7)(A)(i)(1) (alien not in possession
    of valid entry documents). Petitioner then filed applications for asylum, withholding of
    removal, and protection under the CAT, citing his wife’s second pregnancy and forced
    abortion and their attempts to avoid that event, and his fear that, if he returned to China,
    he would be persecuted for his actions in opposition to the country’s family planning
    policy.
    1
    On March 1, 2003, the INS ceased to exist as an independent agency within the
    Department of Justice and its functions were transferred to the newly formed Department
    of Homeland Security. See Homeland Security Act, Pub. L. No. 107-296, § 441, 
    116 Stat. 2135
    , 2192 (2002). The former INS was divided into three separate agencies:
    United States Immigration and Customs Enforcement; Bureau of Customs and Border
    Protection; and the United States Citizenship and Immigration Services. Joseph v.
    Attorney General, 
    421 F.3d 224
    , 225 n.2 (3d Cir. 2005).
    2
    Petitioner appeared before an Immigration Judge (“IJ”) on October 26, 2001.
    After eliciting minimal testimony from petitioner, his counsel requested a continuance,
    citing concerns with petitioner’s mental and physical capacities and noting that “what [he
    has] told us today just simply doesn’t make sense.” The IJ stated on the record that he too
    had observed petitioner stuttering, making “violent head jerks,” and constantly
    contradicting himself. (App. at 118 (“[T]he testimony is so contradictory[;] [he] can’t
    remember two minutes after he tells me one thing[] what he’s told me because he
    immediately contradicts it. [I] was tempted to just cut this hearing short and . . . [order
    removal] for lack of credibility, but there may be some organic problem here.”).)
    Speculating that perhaps petitioner required medical attention, the IJ granted the
    continuance. When petitioner subsequently appeared before him on November 4, 2002,
    the IJ reviewed the reason for the continuance and asked whether petitioner had sought
    medical attention. Counsel represented that, despite their urging, he had not visited a
    doctor or a speech therapist; petitioner stated: “I didn’t need to see a doctor.” Before
    resuming testimony, the IJ warned that, to the extent petitioner continued to contradict
    himself, such would be viewed as having “nothing to do with any psychological or
    medical problem.” After the hearing, the IJ denied petitioner’s applications for asylum,
    withholding of removal and protection under the CAT, citing specific contradictions in
    his testimony and deeming him “totally incredibl[e].” (App. at 85 (“It is obvious to the
    Court that [petitioner] is making up his testimony as he is going along . . . .”).) Petitioner
    3
    appealed and on March 31, 2004, the Board affirmed the IJ’s decision without opinion.
    This petition for review followed on April 23, 2004.
    On May 10, 2004, petitioner filed a motion to reopen the Board’s decision;
    attached thereto was a psychologist’s report, attempting to explain why petitioner had
    contradicted himself and/or otherwise behaved oddly during the hearing. By opinion
    dated September 9, 2004, the Board denied the motion to reopen, noting that the
    psychologist’s report did not refer to any specific testimony and did not otherwise
    establish petitioner as credible. Additionally, the Board noted that petitioner had been
    given ample opportunity to submit this type of evidence to the IJ but failed to do so.
    petitioner did not appeal this order.
    II.
    We have jurisdiction to review a final order of removal pursuant to 
    8 U.S.C. § 1252
    (a)(1). Because the BIA affirmed the IJ’s decision without opinion, we review the
    decision of IJ. Zhang v. Gonzales, 
    405 F.3d 150
    , 155 (3d Cir. 2005) (citing Abdulai v.
    Ashcroft, 
    239 F.3d 542
    , 549 n.2 (3d Cir.2001)).
    An alien has the burden of supporting his claim for relief from removal. His
    credibility, by itself, may satisfy the burden, or doom the claim. Dia v. Ashcroft, 
    353 F.3d 228
    , 247 (3d Cir. 2003) (en banc). Testimony, by itself, is sufficient to meet the burden if
    “credible.” 
    Id.
     (quoting 
    8 C.F.R. § 208.13
    (a)). An adverse credibility determination is a
    finding of fact, 
    id.,
     which we review under the standard found in 8 U.S.C.
    4
    § 1252(b)(4)(B) (“[A]dministrative findings of fact are conclusive unless any reasonable
    adjudicator would be compelled to conclude to the contrary”). This standard has been
    interpreted to require the finding be supported by substantial evidence. Dia, 
    353 F.3d at
    247-48 (citing INS v. Elias-Zacarias, 
    502 U.S. 478
    , 481 (1992)). “Substantial evidence is
    more than a scintilla, and must do more than create a suspicion of the existence of the fact
    to be established. It means such relevant evidence as a reasonable mind might accept as
    adequate to support a conclusion.” Id. at 248 (internal citation, quotation omitted). We
    require that an adverse credibility determination be supported by specific and cogent
    reasons for disbelief, see id. at 249, but recognize that an “immigration judge alone is in a
    position to observe an alien's tone and demeanor, to explore inconsistencies in testimony,
    and to apply workable and consistent standards in the evaluation of testimonial evidence.
    He is, by virtue of his acquired skill, uniquely qualified to decide whether an alien's
    testimony has about it the ring of truth,” Abdulrahman v. Ashcroft, 
    330 F.3d 587
    , 597 (3d
    Cir. 2003) (quoting Sarvia-Quintanilla v. INS, 
    767 F.2d 1387
    , 1395 (9th Cir. 1985)).
    Pursuant to 
    8 U.S.C. § 1158
    (b)(1)(B)(iii), as amended by the REAL ID Act of
    2005, Pub. L. No. 109-13, 
    119 Stat. 231
    , inconsistencies, inaccuracies, or falsehoods
    identified by an IJ giving rise to an adverse credibility determination may now be made
    “without regard” to whether they “go[] to the heart of the applicant's claim.” Cf. Gao v.
    Ashcroft, 
    299 F.3d 266
    , 272 (3d Cir. 2002). Rather, amended § 1158(b)(1)(B)(iii) states:
    (iii) Credibility Determination-Considering the totality of the circumstances,
    and all relevant factors, a trier of fact may base a credibility determination
    5
    on the demeanor, candor, or responsiveness of the applicant or witness, the
    inherent plausibility of the applicant's or witness's account, the consistency
    between the applicant's or witness's written and oral statements (whenever
    made and whether or not under oath, and considering the circumstances
    under which the statements were made), the internal consistency of each
    such statement, the consistency of such statements with other evidence of
    record (including the reports of the Department of State on country
    conditions), and any inaccuracies or falsehoods in such statements, without
    regard to whether an inconsistency, inaccuracy, or falsehood goes to the
    heart of the applicant's claim, or any other relevant factor. There is no
    presumption of credibility, however, if no adverse credibility determination
    is explicitly made, the applicant or witness shall have a rebuttable
    presumption of credibility on appeal.
    
    8 U.S.C. § 1158
    (b)(1)(B)(iii).
    IV.
    Petitioner argues the adverse credibility determination is not supported by
    substantial evidence. Specifically, he asserts that many of the inconsistencies cited by the
    IJ as the basis for his decision arise not from his testimony but from the IJ’s
    misunderstanding of it. Additionally, he asserts that the adverse credibility determination
    was based on immaterial inconsistencies that do not detract from the cogency of
    petitioner’s basic claim. We have reviewed petitioner’s arguments against the record and
    conclude that there are sufficient material inconsistencies to uphold the adverse
    credibility determination, and specifically to satisfy amended § 1158(b)(1)(B)(iii).
    Specifically, as the IJ noted, the contradictions were rife among petitioner’s application
    for asylum, his supporting affidavit, and his testimony on basic facts central to his claim
    for relief, including the date of the IUD insertion, the date of his pregnant wife’s physical
    6
    examination by local officials, the date of the abortion, and the events surrounding their
    attempt to hide from local officials. This record simply would not compel a reasonable
    adjudicator to reach a conclusion opposite to that reached by the IJ.
    Acknowledging, as he must, that there are many unexplained inconsistencies in the
    record, petitioner next argues that, where an IJ observes behavior causing him to question
    a petitioner’s competency, it is reversible error to base an adverse credibility finding on
    such behavior. We cannot agree on this record. Here, the IJ granted a lengthy
    continuance and warned that petitioner’s behavior would have be viewed as adversely
    impacting his credibility without medical documentation to support that his behavior
    stemmed from something other than untruthfulness. When the hearing resumed, the IJ
    specifically inquired whether medical documentation was available, but none was
    forthcoming. The psychologist’s report attached to the motion to reopen was not before
    the IJ when he made the decision now under review. We lack jurisdiction to review the
    Board’s denial of the motion to reopen in the absence of a separate appeal therefrom, see
    Nocon v. INS, 
    789 F.2d 1028
    , 1033 (3d Cir. 1986) (stating that final deportation orders
    and orders denying motions to reopen or reconsider are “independently reviewable final
    orders”), and thus cannot rely on the psychologist’s report as undermining the adverse
    credibility finding, see 
    8 U.S.C. § 1252
    (b)(4)(a) (“[A] court of appeals shall decide the
    petition only on the administrative record on which the order of removal is based”).
    Accordingly, the petition for review will be denied.
    7